The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
Presently before the Court is Plaintiff Leon James Page's ex parte motion for a temporary restraining order and order to show cause in this action against Defendant Tri-City Healthcare District ("Tri-City" or "the District"). (Mot. for TRO, ECF No. 4.) Also before the Court are TriCity's opposition (Opp'n to TRO, ECF No. 5), supplemental briefing from both parties in response to the Court's request (Pl.'s and Def.'s Supp. Briefs, ECF Nos. 8, 9), and various objections and declarations filed by the parties (ECF Nos. 10, 13, 14, 15, 17.) Defendant has also filed a motion in this case "to strike first, second, and fourth claim for relief," alleging Plaintiff's complaint constitutes a Strategic Lawsuit Against Public Participation ("SLAPP"). (Anti-SLAPP Mot., ECF No. 3.)
Plaintiff is a "taxpayer and resident" of the City of Carlsbad, California. (Compl. ¶ 4, Ex. A to Notice of Removal, ECF No. 1.) Defendant Tri-City is a public healthcare district organized under California law, serving the cities of Carlsbad, Oceanside, and Vista, and surrounding unincorporated areas. (Compl. ¶ 5.) Tri-City is governed by a Board of Directors, which consists of seven elected officials who serve four-year terms.*fn1 (Id. at ¶¶ 6-7.) These terms are staggered such that three Director positions are filled in one election, and the other four are elected two years later. (See Def.'s Supp. Brief 6; Moser Supp. Decl. 2, Ex. 1 to Def.'s Supp. Brief.) The Directors are elected at-large, using a system whereby all candidates for the Board of Directors run for all of the positions up for election that term, with each voter able to vote for multiple candidates up to the total number of available positions; the open positions are filled by the three or four candidates receiving the greatest number of votes.*fn2 (Id.) In 2010, Randy Horton was elected to one of three available positions on the Board of Directors, receiving 25,508 votes (including Plaintiff's), which constituted 16.1% of the total votes, placing Horton second in a field of seven candidates. (Compl. ¶ 7; Moser Supp. Decl. 2.) His four-year term expires in 2014.
After Director Horton assumed his duties as a member of the Board, events occurred which are the subject of the instant lawsuit. On April 28, 2011, in closed session*fn3 , a majority of the Board members voted to prohibit Director Horton from participating and voting in closed session meetings of the Board for a six-month censure period. (Compl. ¶ 11; Anti-SLAPP Mot. 10.) Director Horton was present at this meeting, at which Chief Executive Officer Larry Anderson
On May 26, 2011, the Board met again to consider Director Charlene Anderson's request that the Board impose sanctions upon Mr. Horton for "alleged violations of California law and alleged violations of District policies," including conduct that took place both before and after Director Horton assumed his role on the Board. (Id.) Director Anderson claimed Director Horton had disclosed further confidential Board information on several occasions in violation of the Board's confidentiality policy, Policy No. 10-022, and that he had made false and defamatory statements to the public on several occasions in violation of his professional duties as a certified public accountant. (Id.) The Board approved the requested sanctions by majority vote, invoking the Board's code of conduct, Policy No. 10-039, as its basis for imposing sanctions. (Id. at 10-11.) These sanctions included the temporary suspension of Director Horton's stipend for attendance at meetings during his censure, and the determination that the District would not indemnify Director Horton should he face liability "resulting from" this misconduct.*fn4 (Id.)
Pursuant to these disciplinary decisions, Director Horton was
prohibited from attending and voting in at least eleven closed session
meetings, and was not paid a stipend for these meetings.*fn5
(Compl. ¶ 12-4; Mot. for TRO 8.) Plaintiff, apparently a
concerned citizen, voiced his objections to the Board's censure of
Director Horton in a letter sent to the District on October 15, 2011.
(Compl. ¶ 5.) In this "cease and desist letter," Plaintiff stated he
would sue the District as a "taxpayer representative" if the District
did not stop excluding Director Horton from closed session meetings.
At a meeting held on October 27, 2011, the day before the six-month censure period was scheduled to elapse, the Board noted that the censure period for Director Horton was about to expire but did not extend the censure. (Anti-SLAPP Mot. 11.) However, Plaintiff states that Director Anderson delivered to the Board "an inflamatory (sic) renunciation of Director Horton and Director Kathleen Sterling in which he accused them of placing the interests of their constituents above those of the District, of being 'double agents' and violating new hospital policies he sponsored requiring the elected Director/Trustee to be 'loyal' and 'obedient.'" (Compl. ¶ 24.) The Board then decided that, going forward, it would decide whether to allow Director Horton to participate and vote in closed sessions on a case-by-case basis, to be determined by majority vote immediately before each future closed session meeting. (Id.)
At the next Board meeting on December 20, 2011, Director Horton was asked to sign a confidentiality pledge regarding information disclosed during closed session, but he refused. (Anti-SLAPP Mot. 11.) According to Tri-City, this pledge is "the same confidentiality acknowledgment that all District employees, committee members and Board members sign."*fn6
(Def.'s Supp. Brief 1.) Indeed, the Board's confidentiality policy, Policy No. 10-022, states that each Board member shall sign the pledge immediately after their initial appointment to office. (See Confidentiality Policy, Ex. 2 to Def.'s Supp. Brief, ECF No. 8-1.) At oral argument, both parties agreed that the other Board members have signed the pledge. However, in objection to TriCity's assertions to the contrary, Plaintiff argued that it remained an open question whether Director Horton would be let in to subsequent meetings after signing the pledge, and that the Board's actions could not be predicted.
After Director Horton refused to sign the pledge, the Board then voted to exclude him from all of the matters heard in the closed session meeting except for agenda item (e), relating to "certain real property negotiations." (Compl. ¶ 25.) As a result, Director Horton was excluded from participating in: "(a) a hearing on the reports of the Hospital Medical Audit or Quality Assurance Committees; (b) a conference with legal counsel on four (4) matters of litigation; (c) a conference with legal counsel concerning exposure to litigation; and (d) approval of prior board closed session minutes." (Id.)
Subsequent to this December 20, 2011 exclusion, Director Horton was also excluded on an ad-hoc basis from at least portions of closed session meetings on January 26, 2012, and February 1, 2012. (Mot. for TRO 8.) According to Plaintiff, the District "spends public money to contract with private security personnel for the illegal purpose of physically preventing Director Horton from representing his constituents and voting during closed session meetings of the District's Board of Directors." (Id. at 8-9.) Director Horton has also been denied access to the minutes of any closed session meetings from which he was excluded. (Id. at 9.)
Plaintiff brought this action in superior court on December 27, 2011, stating four causes of action against the District under state and federal law, alleging that he, along with other members of the voting public, have been disenfranchised and "denied meaningful representation on District's Board of Directors" by the Board's actions with regard to Director Horton. (Compl. ¶ 16.) Plaintiff further alleges that the District's actions were taken "in retaliation against Director Horton for his First Amendment-protected activities in an effort to unlawfully chill his public participation and comments during and concerning official proceedings of the District's Board of Directors." (Compl. ¶ 17.)
Tri-City claims it was not served with Plaintiff's complaint. (Opp'n to TRO 1.) Rather, on January 24, 2012, Tri-City received an email from Plaintiff's counsel, containing the complaint and ex parte papers seeking an injunction against the District. (Id.) The hearing on the ex parte motion was set for Thursday, January 26, 2012, the same day as a regularly scheduled meeting of the Board of Directors. However, on Wednesday, January 25, 2012, Tri-City removed the case to federal court based on Plaintiff's federal claim under 28 U.S.C. § 1983. (Id.; see also Notice of Removal.) On January 31, 2012, Tri-City filed its Anti-SLAPP motion to strike. On February 2, 2012, Plaintiff filed the instant ex parte application for a temporary restraining order and order to show cause before this Court, alleging irreparable harm based on the District's ongoing denial of his right to the equal protection of the law each time Director Horton, his "duly elected representative," is excluded from the closed session meetings of the Board. (Mot. for TRO 12.)
Plaintiff requests the Court enjoin the District from: "(1) excluding Director Randy Horton from closed session meetings of District's Board of Directors; and (2) denying Director Horton the same rights, privileges, and powers afforded to other duly-elected Members of District's Board of Directors." (Pl.'s Supp. Brief 7.)
Temporary restraining orders are governed by the standard applicable to preliminary injunctions. See Fed. R. Civ. P. 65. A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). Although all four factors must be met, they operate on a sliding scale. "Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). For example, "a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits." Id. at 1135.
A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. NRDC, 555 U.S. at 22. The typical preliminary injunction is prohibitory, and seeks to "maintain the status quo pending a trial on the merits." Mastrovincenzo v. City of N.Y., 435 F.3d 78, 89 (2d Cir. 2006); see also Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-89 (9th Cir. 2009). A mandatory injunction, in contrast, "orders a responsible party to take action . . . [and] goes well beyond simply maintaining the status quo." Marlyn Nutraceuticals, 571 F.3d at 879 (internal quotations and citations omitted). In this context, the "status quo" refers to "the last, ...